Health care law and Ohio: It is constitutionally sound and no challenge would prevail: Richard Cordray

When I was elected Ohio attorney general in 2008, I promised voters to focus on the economic security issues affecting Ohioans, such as consumer protection, foreclosure prevention and worker misclassification. As the centerpiece of these efforts, I pledged that we would find ways to hold Wall Street accountable for the extensive harm that greed, misconduct and excessive risk-taking had caused to our economy and to Ohio pensioners and investors. That has been our primary focus during my tenure, as we strive to stand up for Ohioans and improve their daily lives.

Now some state and federal officeholders are urging that my top priority instead should be to bring a lawsuit challenging the constitutionality of the new health insurance reform law. Indeed, my opponent, former Sen. Mike DeWine, states that he would file this lawsuit on his first day in office.

The question thus posed is a matter of judgment -- about how to deploy the attorney general's strongest weapon, the power to initiate litigation. When I first took office, I faced a difficult decision about whether to proceed with a pending nuisance lawsuit against paint companies. After close scrutiny, I dismissed the case, judging it unlikely to succeed and noting that not every problem is best solved by a lawsuit.

The same is true here. Because I work with these officeholders and respect them, I have carefully considered the basis of the lawsuit they have urged. My considered judgment is that it lacks merit and to pursue it would be a waste of taxpayer dollars.

I reach this conclusion from a background of having taught and practiced constitutional law for many years. Two Supreme Court Justices, Byron White and Anthony Kennedy (appointed by Presidents Kennedy and Reagan, respectively) taught me as their law clerk to review constitutional challenges to federal laws with great care, mindful of the proper balance of power between the states and Congress within our federalist system. During 13 years of teaching constitutional law at the Ohio State University Moritz College of Law, I tried to convey this same respect for federalism to my students. Some of the seven cases I have argued before the United States Supreme Court have raised these very concerns.

Two constitutional issues are raised in the lawsuits. The first is whether Congress exceeded its proper bounds by enacting a mandate for most Americans to purchase health care coverage. For seventy years, the Supreme Court has read the Commerce Clause broadly to authorize Congress to address our most pressing national economic concerns. In Gonzales v. Raich, a 2005 decision, the court held that the Commerce Clause authorizes Congress to prohibit the cultivation of marijuana for personal medical use because it has economic effects, even though no economic transaction was involved at all.

The claim is also made that Congress has never required anyone to purchase a product or service. That is factually wrong. The Second Militia Act of 1792, signed by President George Washington, explicitly required many Americans to make an economic purchase: of a gun, ammunition, gunpowder, and a knapsack to be properly prepared for military service. In 1798, President John Adams signed "An Act for the Relief of Sick and Disabled Seamen," which required privately employed sailors to purchase insurance to support the newly created marine hospital service. In the new law, the individual mandate is inextricably intertwined with the comprehensive economic approach that Congress adopted to fix the deep flaws in our current health insurance system, which affects one-sixth of the American economy. In short, the Commerce Clause claim has no legal merit unless activist judges, of the type these officeholders normally deplore, were to tear up decades of settled jurisprudence.

The other constitutional argument is that the Tenth Amendment does not permit Congress to require states to establish insurance exchanges. But the new law does not require that. Instead, it gives states a choice, and if they decline, the federal government will take on that responsibility. Just as Medicaid is a voluntary federal-state program whose constitutionality has been upheld by the courts, this new law is entirely consistent with the Tenth Amendment.

I do not believe in wasting taxpayer dollars to pursue political agendas through symbolic lawsuits. Instead, we will continue to focus our efforts on protecting the financial security of Ohio families by holding Wall Street accountable and helping to level Ohio's economic playing field. I welcome the chance to work with any public official on such efforts to assist Ohioans during these difficult economic times.

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